141 F.

3d 105
157 L.R.R.M. (BNA) 2976

COFAB, INC.
v.
PHILADELPHIA JOINT BOARD, AMALGAMATED
CLOTHING AND TEXTILE
WORKERS UNION, AFL-CIO-CLC a/k/a Unite! Philadelphia
Joint
Board, Amalgamated Clothing & Textile Workers Union,
AFL-CIO-CLC, a/k/a Unite, Appellant.
No. 97-1425.

United States Court of Appeals,

Third Circuit.
Argued Jan. 22, 1998.
Decided April 8, 1998.

Bernard N. Katz (Argued), Elissa B. Katz, Meranze & Katz, Philadelphia,

PA, for Appellant.
Adolph F. Fellmeth, III (Argued), Jenkintown, PA, for Appellee.
Before: SLOVITER, LEWIS* and ROSENN, Circuit Judges
OPINION OF THE COURT
SLOVITER, Circuit Judge.

The Philadelphia Joint Board, Amalgamated Clothing & Textile Workers

Union, AFL-CIO-CLC, also known as Unite! ["the Union"], appeals from the
district court's order staying the action before it pending the final completion of
related proceedings before the National Labor Relations Board. The action was
filed pursuant to section 301 of the Labor Management Relations Act, as
amended, by Cofab, Inc., seeking an injunction and an order vacating and/or
staying enforcement of an arbitrator's award finding that Cofab was the alter
ego and successor of DA Clothing Co. The Union filed a counterclaim to

enforce the award. Cofab filed a motion to stay, which the district court
granted, and the Union appeals. Before we can consider the merits of the
Union's agreement, we must decide whether we have jurisdiction over the
district court's order granting a stay.
I.
2

DA Clothing Company, the alleged predecessor to Cofab, operated a

manufacturing facility in Pennsylvania, and was a party to a Collective
Bargaining Agreement ("CBA") with the Union. On December 17, 1993, the
company closed its doors without giving any notice to the Union. The
following month, the son of the former owner of DA Clothing opened a new
non-union plant, under the name Cofab, Inc., about fifteen minutes away from
the location of DA Clothing. Cofab hired many of the former employees of DA
Clothing, retained much of DA Clothing's equipment, and serviced the same
single customer.

In March 1994, the Union filed an unfair labor practice charge against Cofab
with the National Labor Relations Board, asserting that, as the successor and
alter ego of DA Clothing, Cofab was bound by the collective bargaining
agreement between DA Clothing and the Union. Following a two-day hearing
in January 1995, an Administrative Law Judge determined that Cofab was a
successor to, but not an alter ego of, DA Clothing. Joined by the Union, the
General Counsel of the NLRB filed exceptions to the ALJ's determination that
Cofab was not an alter ego. There was a hearing in Washington, D.C., after
which the NLRB issued its decision on September 5, 1996, concluding that
Cofab and DA Clothing were alter egos, and that Cofab was therefore obligated
to comply with the terms of the collective bargaining agreement between DA
Clothing and the Union. On September 30, 1996, however, the NLRB General
Counsel filed a motion to modify or clarify the NLRB's order. Both parties
assumed that this motion remained pending up to the time of oral argument on
this appeal.

Buoyed by the NLRB finding that Cofab was an alter ego of DA Clothing, in
October 1996 the Union filed a request for expedited arbitration of its
grievances pursuant to the collective bargaining agreement between the Union
and DA Clothing. Cofab sought a temporary restraining order in the district
court to stay the arbitration. The district court denied the request for a stay,
stating that Cofab could present its jurisdictional argument to the arbitrator. At
the arbitration hearing in November 1996, Cofab appeared only for the purpose
of registering its objection that the arbitrator lacked jurisdiction over Cofab on
the ground that it was not a party to the CBA, and was not subject to its terms.

The arbitration nevertheless proceeded in Cofab's absence.

5

On January 31, 1997, the arbitrator filed his opinion and award. The arbitrator
rejected Cofab's jurisdictional objection and in a written opinion noted that the
facts presented before him were the same as the facts presented before the
Administrative Law Judge of the NLRB to which Cofab had not filed
exceptions. He found that the two real principals of DA Clothing Company
were Phyllis D'Amore and her son Robert D'Amore, that they closed the
operating facility and reopened under the Cofab, Inc. name, with Robert
D'Amore being designated the chief executive officer while his mother
occupied some other corporate position but that they both participated as they
had under the label of DA Clothing Co., that their employees were the same,
and that their one customer was the same, and that therefore Cofab meets "all
of the contract criteria for being deemed a successor" as envisioned by the
CBA.App. at 34-35. After concluding that Cofab was bound by the CBA, the
arbitrator ordered Cofab to observe the terms of the CBA, and awarded the
Union $1,394,529 in damages. App. at 38-39.

On March 13, 1997, Cofab filed in the district court the complaint that initiated
this suit in which it sought to vacate the award, "and/or for [a] preliminary and
permanent injunction staying enforcement of [the] arbitration award." App. at
4. Cofab stated that if the NLRB decision remained unchanged by the motion
for modification, it intended to appeal to this Court. Cofab contended that a stay
pending a final decision from the NLRB would be appropriate because it would
prevent costly relitigation in the district court of the same issues presented to
the ALJ and the NLRB. The Union argued that the motion pending before the
NLRB requested only a clarification of the remedy and did not seek to modify
the substance of the Board's decision, and it asked the district court either to
enforce or vacate the award.

The district court declined the Union's request, and instead it stayed the action.
The district court stated:

8 make any ruling on the arbitrator's award, I would have to determine whether the
To
arbitrator had jurisdiction, an issue that hinges on whether Cofab and DA are alter
egos. Accordingly, I would have to make the same determination on alter ego status
that has been made by the Board, and that will ultimately be made by the Third
Circuit on appeal of the Board's order. The Union rightly points out that the Board
and arbitration proceedings are separate proceedings designed to enforce different
rights. The central question in each of these proceedings, however, is the same-whether Cofab is the alter ego of DA. Cofab has represented to this court that it will
pursue an appeal to the Third Circuit as soon as the Board certifies its decision.

Presumably, the Third Circuit will then rule on Cofab's alter ego status. Under these
circumstances, I find that a stay of these proceedings is appropriate.
9

App. at 122-23. The district court also ordered the parties to "keep the court
advised of all relevant proceedings." App. at 125. The district court docket
entries indicate that the case was never closed.

10

The Union filed this appeal contending, preliminarily, that the district court
erred by not dismissing Cofab's complaint because it was filed thirty-six days
after the issuance of the arbitrator's award, beyond the thirty-day period to
challenge an award set by 42 Pa. Cons.Stat. 7314. The Union also challenged
the stay on the merits, arguing that: (1) the stay was inconsistent with the
court's earlier ruling denying a stay pending arbitration; (2) the award can be
enforced based upon the undisputed finding that Cofab was a successor to DA
Clothing; and (3) the "stay" did not meet the criteria for the issuance of an
injunction.

11

Cofab countered that: (1) the statute of limitation is applicable only to parties
who signed a CBA, and it argues it has no CBA with the Union; (2) it is
required to comply with the CBA only if it is found to be an alter ego, not
merely a successor; and (3) a stay was appropriate to avoid relitigating the key
issue of whether Cofab was an alter ego of DA Clothing.

12

This court sua sponte inquired of the NLRB as to the status of the long-pending
motion for clarification by the General Counsel and learned that the Board, by
order dated September 15, 1997, granted the motion for clarification and
amended its September 5, 1996 order to state that Cofab employees who were
unlawfully denied employment at Cofab enjoy the "full make whole" remedies
provided by statute. The clarification order did not alter the Board's essential
finding that Cofab is an alter ego of DA Clothing.

13

We note that had either party made appropriate inquiry and advised the district
court as it requested when the status changed, it is likely that this appeal would
not have been necessary. Following receipt of this information, we requested
both parties to submit supplemental briefs on this court's jurisdiction, an issue
to which we now turn.1

II.
14

Neither party questioned this Court's jurisdiction in its initial submission,

apparently based on the assumption that the district court's order was an

interlocutory injunction appealable under 28 U.S.C. 1292(a)(1). This court's

inquiry as to this issue at oral argument and our request for supplemental
briefing led to reconsideration by the appellee. Cofab now contends that we
lack jurisdiction, because the underlying order is merely one granting a stay.
The Union, on the other hand, characterizes the order as an injunction because
the practical effect has been to enjoin the enforcement of the labor arbitration
award.
15

Although the effect on the Union from the district court's stay may not be
dissimilar from that of an injunction, we cannot agree that 1292(a)(1) is
applicable here. The district court "enjoined" no party or proceeding but rather
stayed its own action regarding the arbitration award pending the outcome of a
final NLRB ruling. The district court did not evaluate Cofab's request under the
familiar criteria for the issuance of injunctive relief. See Gerardi v. Pelullo, 16
F.3d 1363, 1373 (3d Cir.1994). The district court made only passing reference
to harm, a relevant factor to be considered in entering an injunction, when it
noted that a stay would "impose a significant hardship on Cofab" and that to
"rule on the arbitrator's jurisdiction now would be a repetitious and wasteful use
of judicial resources." App. at 124. Because we cannot characterize the stay as
a preliminary injunction under 28 U.S.C. 1292(a)(1), we must find a basis for
our jurisdiction, if any, elsewhere. See Allied Air Freight, Inc. v. Pan American
World Airways, Inc., 340 F.2d 160, 161 (2d Cir.1965) (stay of federal action
pending completion of administrative proceedings not appealable as
preliminary injunction).

16

Our search for an alternative basis for jurisdiction has not been successful.
Although the Federal Arbitration Act has provisions permitting an appeal from
an order that, inter alia, denies a petition under the Act to order arbitration to
proceed or denies an application to compel arbitration, see 9 U.S.C. 16(a)(1),
there is no provision authorizing an appeal from an interlocutory order granting
a stay of any award entered after an arbitration. See Abernathy v. Southern Cal.
Edison, 885 F.2d 525, 530 n. 18 (9th Cir.1989) (where "order staying the
proceeding or compelling arbitration is only one step in the judicial proceedings
and the case can be expected to return to the district court, the order is nonfinal
and not subject to immediate appeal.")

17

Our research has not disclosed any cases holding that an appellate court has
jurisdiction to review an order granting a stay of enforcement of an arbitration
award pending a final NLRB decision. The issue arose in Nelson v.
International Bhd. of Elec. Workers, Local Union No. 46, 899 F.2d 1557 (9th
Cir.1990), where the court noted its uncertainty about its appellate jurisdiction
over a district court stay of enforcement of an arbitration award. Because the

court found jurisdiction permissible on other grounds, it expressed no opinion

on this issue. However, the court stated:
18 Chapter has raised some questions concerning the appealability of the stay
The
issued in the section 301 suit. Although we have ruled that we do not have
jurisdiction over appeals from stays pending, or orders compelling, arbitration, we
have not determined the appealability of a stay of an action to enforce an arbitral
ruling. Without expressing an opinion on the general question of the appealability of
a stay of a section 301 action, we believe that the issues raised ... here are so
intertwined that we must uphold the stay....
19

Id. at 1563 n. 5. Cf. Richman Bros. Records, Inc. v. U.S. Sprint

Communications Co., 953 F.2d 1431 (3d Cir.1991)(order staying lawsuit while
referring a question to Federal Communications Commission is not final
decision reviewable on appeal).

20

This court has recently had occasion to consider our jurisdiction over an appeal
from a district court order staying proceedings pending resolution of a state
court action. See Michelson v. Citicorp Nat'l Servs., Inc., 138 F.3d 508 (3d
Cir.1998). The context in Michelson was different from that before us here, but
in that case we had occasion to reiterate Justice Brennan's statement that " 'the
usual rule that a stay is not ordinarily a final decision for purposes of 1291,
since most stays do not put the plaintiff effectively out of court'." Id., 138 F.3d
at 513 (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 10 n. 11, 103 S.Ct. 927, 934 n. 11, 74 L.Ed.2d 765 (1983) (internal
quotations omitted)). See also Marcus v. Township of Abington, 38 F.3d 1367,
1370 (3d Cir.1994) ("Stay orders normally are not appealable final orders
because they merely delay proceedings in the suit."); Schall v. Joyce, 885 F.2d
101, 104 (3d Cir.1989) (recognizing that Moses H. Cone reaffirmed the "usual
rule" that a stay is not ordinarily a final decision for purposes of 1291).

21

This court has recognized that where a stay is indefinite and may "unreasonably
delay[ ] a plaintiff's right to have his case heard," the order may be deemed
appealable. Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 735 (3d
Cir.1983). In this case, there is no suggestion that the district court intended to
"deep six" the suit, an intent we also held missing in Cheyney. Id. The district
court order here merely postponed consideration of the arbitration award, and
in fact the district court made explicit its anticipation of the return of the case
by requiring the parties to "keep the court advised of all relevant proceedings."
App. at 125. There is no reason to assume that the district court will not rule
promptly once it is advised that the NLRB has issued its ruling on the extent of
the make-whole remedy, the issue as to which the General Counsel sought

clarification.
22

This case is unlike Moses H. Cone, 460 U.S. at 9-10, 103 S.Ct. at 933-34,
where the stay of the federal suit pending resolution of the state suit meant that
there would be no further litigation in the federal forum, and is more like
Marcus, 38 F.3d at 1370, where we held that "[a]ppellate review is
inappropriate here because the stay entered by the district court merely delays
the federal litigation and does not effectively terminate it." See also Schall, 885
F.2d at 104-05 (same).

23

We have also considered but reject the possibility that this case falls within the
small class of collateral orders that are reviewable even though they do not
terminate the underlying litigation under the "collateral order" doctrine first
announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct.
1221, 93 L.Ed. 1528 (1949). The collateral order doctrine allows an appellate
court to review a collateral order that (1) finally resolves a disputed question;
(2) raises an important issue distinct from the merits of the case; and (3) is
effectively unreviewable on appeal from a final judgment. Praxis Properties,
Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 54 (3d Cir.1991). The stay
order in this case could not qualify as a collateral order because, inter alia, it
does not finally resolve a disputed question but merely postpones the district
court's decision to enforce or vacate the arbitration award. See, generally, Rolo
v. General Development Corp., 949 F.2d 695 (3d Cir.1991) (stay order that
merely delays resolution in the district court not reviewable under collateral
order doctrine).

24

Based on the foregoing analysis, we come to the inevitable conclusion that the
order granting a stay in this case is not an appealable order. There is only one
other vehicle by which the order could come before us for review at this time,
i.e., on a petition for mandamus which is appropriate when a district court has
refused to act on a motion within its jurisdiction. Before we would construe the
appeal as a request for mandamus under 28 U.S.C. 1651, see Cheyney, 703
F.2d at 736, we would have to find that the district court committed a clear
error " 'approach[ing] the magnitude of an unauthorized exercise of judicial
power, or a failure to use that power when there is a duty to do so'." Richman
Bros. Records, 953 F.2d at 1448 (quoting Lusardi v. Lechner, 855 F.2d 1062,
1069 (3d Cir.1988)). This is not such a case.

25

The Union correctly notes that, as a general matter, the "mere possibility of a
conflict [between the NLRB and the district court] is no barrier to enforcement
of the [arbitration] award," nor does a "pending charge before the NLRB
require stay or dismissal of the enforcement suit." Sheet Metal Workers' Int'l

Ass'n, Local No. 252 v. Standard Sheet Metal, Inc., 699 F.2d 481, 483-84 (9th
Cir.1983) (citing Orange Belt Dist. Council of Painters No. 48 v. Maloney
Specialties, Inc., 639 F.2d 487, 490 (9th Cir.1980) (potential for conflict
between arbiter's award and NLRB decision does not preclude district court's
confirmation of award)).
26

We need not decide how we would rule on the stay if it were properly before us
for review in the course of an appeal. It is not, and nothing about the
circumstances in this case would impel us to issue a writ of mandamus. See
United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting
Industry, Local Union No. 525 v. Foley, 380 F.2d 474 (9th Cir.1967) (denying
mandamus petition to vacate stay pending outcome of related proceedings
before NLRB).

III.
27

For the reasons set forth, this appeal will be dismissed for lack of jurisdiction.

Judge Lewis heard argument in this matter but was unable to clear the opinion
due to illness

We have also learned that on November 17, 1997, the NLRB filed in this Court
an Application for Enforcement of its Order. See C.A. Nos. 97-3596 and 973642. That application remains pending